Civil Commitment

by Winick, Bruce J.

• ISBN13: 9781594600210
• ISBN10: 159460021X
• Format: Hardcover
• Copyright: 2005-01-01
• Publisher: Carolina Academic Press

Author Biography

Bruce J. Winick, Professor of Law at the University of Miami School of Law since 1974, is the co-founder of therapeutic jurisprudence, an interdisciplinary field of legal scholarship and law reform.

Table of Contents

Acknowledgments	xv
Chapter 1 Toward A Therapeutic Jurisprudence Model for Civil Commitment	1	(16)
The Consequences of Civil Commitment	1	(3)
The Medical Model and the Legal Model of Civil Commitment	4	(2)
A Therapeutic Jurisprudence Model of Civil Commitment	6	(5)
Organization of the Book	11	(3)
Conclusion	14	(3)
Chapter 2 Striking the Balance Between Coercion and Autonomy: Therapeutic Jurisprudence Insights on Coercion and Its Consequences and Application in the Civil Commitment Process	17	(24)
Legal and Psychological Conceptions of Coercion	18	(4)
A Therapeutic Jurisprudence Approach to Coercion	22	(1)
Does Coercive Treatment Work?: The Relationship Between Treatment Outcome and Patient Perceptions of Coercion and Voluntariness	23	(1)
The Perception of Coercion: What Makes People Feel Coerced?	24	(2)
Balancing the Positive and Negative Effects of Coercion	26	(10)
Applying the Law Therapeutically in Coercive Contexts: Therapeutic Jurisprudence Prescriptions for Clinicians	36	(1)
Conclusion	37	(4)
Chapter 3 Civil Commitment Criteria: An Overview	41	(58)
General Considerations	41	(7)
The Requirement of Mental Illness or Disability	48	(11)
Police Power Commitments	59	(7)
Parens Patriae Commitment	66	(3)
The Medical Appropriateness Principle	69	(2)
The Least Restrictive Alternative Principle	71	(1)
Conclusion	72	(1)
Appendix	73	(26)
Table 3.1: Current Civil Commitment Statutes for the 50 States and the District of Columbia	73	(2)
Table 3.2: Statutory Definition of Mental Illness or Mental Disability for Civil Commitment	75	(6)
Table 3.3: Police Power Commitment Criteria	81	(5)
Table 3.4: Parens Patriae Commitment Criteria	86	(7)
Table 3.5: Statutory Language Contemplating that Commitment be Medically Appropriate	93	(1)
Table 3.6: The Least Restrictive Alternative Requirement for Involuntary Hospitalization	94	(5)
Chapter 4 The Limits of Parens Patriae Commitment: How Incompetency Should Be Defined and Determined	99	(20)
The Constitutional Problem of Defining Parens Patriae Commitment Too Broadly	99	(5)
The MacArthur Treatment Competence Study	104	(6)
Therapeutic Jurisprudence Considerations	110	(1)
How Incompetency Should Be Defined and Applied: A Proposed Presumption in Favor of Competency	111	(5)
Conclusion	116	(3)
Chapter 5 The Outer Limits of Police Power Commitment: The Civil Commitment of Sex Offenders	119	(20)
The Civil Commitment of Sex Offenders	120	(1)
Supreme Court Consideration of Sexually Violent Predator Laws	121	(2)
The Diminished Volitional Ability Requirement for Police Power Commitment	123	(6)
The Mental Illness Requirement for Civil Commitment	129	(2)
The Medical Appropriateness of Sex Offender Civil Commitment	131	(4)
Conclusion	135	(4)
Chapter 6 Application of Civil Commitment Criteria: The Civil Commitment Hearing	139	(26)
Introduction	139	(1)
Procedural Due Process and the Civil Commitment Hearing	140	(2)
The Gap Between Theory and Practice	142	(3)
The Psychology of Procedural Justice and the Commitment Hearing	145	(4)
The Psychological Effects of Coercion and Voluntary Choice	149	(5)
Restructuring the Role of the Actors in the Commitment Process: How Lawyers, Judges, and Expert Witnesses Should Play Their Roles	154	(7)
Conclusion	161	(1)
Appendix	162	(3)
Table 6.1: Statutory Procedures for Civil Commitment Hearings for the 50 States and the District of Columbia	162	(3)
Chapter 7 Voluntary Hospitalization	165	(32)
The Benefits of Voluntary Hospitalization	166	(2)
Competence to Consent to Voluntary Admission and
How It Should Be Defined and Ascertained	168	(3)
How Voluntary Admission Should Work	171	(3)
The "Voluntariness" Requirement for Voluntary Hospitalization and How Its Satisfaction Should be Assured	174	(3)
Conclusion	177	(1)
Appendix	178	(19)
Table 7.1: Statutory Criteria and Procedures for Voluntary Admission	178	(7)
Table 7.2: Informal and Non-protesting Admission	185	(2)
Table 7.3: Requests for Release and Possible Conversion to Involuntary Status	187	(7)
Table 7.4: Duration of Voluntary Hospitalization	194	(3)
Chapter 8 Rights Within the Institution and the Standards Governing Their Exercise or Waiver	197	(42)
The Right to Treatment	199	(5)
The Right to Refuse Mental Health Treatment	204	(5)
Rights to Communication and Visitation	209	(1)
Rights Concerning Seclusion and Restraint	210	(6)
The Right of Institutionalized Patients To Engage in Future
Decision Making Through Advance Directive Instruments	216	(3)
Waiver of Rights Within the Institution	219	(10)
Conclusion	229	(1)
Appendix	230	(9)
Table 8.1: Right to Treatment Statutory Provisions	230	(2)
Table 8.2: Right to Refuse Treatment Statutory Provisions	232	(2)
Table 8.3: Statutory Provisions Regarding Seclusion and Restraints	234	(5)
Chapter 9 Outpatient Commitment	239	(50)
Two Pre-existing Models of Outpatient Commitment: Conditional Release and LRA Outpatient Treatment	243	(3)
Preventive Outpatient Commitment	246	(9)
Balancing the Therapeutic and Antitherapeutic Consequences of Preventive Outpatient Commitment	255	(5)
Alternatives to Preventive Outpatient Commitment: Enhanced Services and Outreach, Assertive Community Treatment, Mental Health Courts, and the Use of Advance Directive Instruments	260	(16)
Applying the Law Therapeutically in Outpatient Commitment Cases	276	(4)
Conclusion	280	(1)
Appendix	281	(8)
Table 9.1: Statutory Provisions for Conditional Release	281	(3)
Table 9.2: Statutory Provisions for Preventive Outpatient Commitment	284	(5)
Chapter 10 International Human Rights Law Limitations on Civil Commitment	289	(36)
Abuses in the Mental Health System of Eastern Europe	290	(3)
Construing International Human Rights Law through the Lens of Therapeutic Jurisprudence: Resolving Vagueness in the European Convention for the Protection of Human Rights and Fundamental Freedoms	293	(1)
The Factual Background of Winterwerp v. The Netherlands	294	(3)
The Meaning of "Unsound Mind" as a Justifying Condition for Civil Commitment	297	(10)
Procedural Requirements for Civil Commitment	307	(8)
The Right to Appropriate Treatment	315	(3)
Automatic Divestiture of Right to Administer Property upon Civil Commitment	318	(2)
Conclusion: Applying International Human Rights Law Therapeutically to Remedy Abuses in the Mental Health System of Eastern Europe	320	(5)
Chapter 11 Conclusion: Therapeutic Jurisprudence's Challenge to Civil Commitment Law and Practice	325	(8)
Index	333